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Dijen Basu QC and Jonathan Davies represent Leicestershire Police in successful appeal against EAT decision that paying men statutory shared parental leave pay potentially constituted indirect sex discrimination

24th May 2019

Dijen Basu QC and Jonathan Davies represented the Chief Constable of Leicestershire Police in his successful appeal to the Court of Appeal against the decision of the EAT that only paying statutory shared parental leave pay to those taking this leave was capable of amounting to indirect sex discrimination against men, given that women have the more lucrative option of taking maternity leave with enhanced maternity pay.

They persuaded the Court of Appeal that the EAT and ET had been wrong to hold that male and female police officers’ terms and conditions of service were identical and that, in reality, Mr. Hextall’s claim amounted to a claim to be entitled to corresponding terms to those of a female officer in relation to maternity leave and pay. As such, it amounted to an equal terms (formerly equal pay) claim, so that any sex discrimination claim would be excluded. The equal terms claim was bound to fail because it related to terms of work affording special treatment to women in connection with pregnancy or childbirth.

To the extent that it could be brought as a direct sex discrimination claim, it would be doomed because of s.13(6)(b) (maternity leave and pay are special treatment afforded to women in connection with pregnancy or childbirth) and, in any event, because a woman taking maternity leave was not a proper comparator within s.23.

The EAT’s analysis of the indirect sex discrimination claim was flawed because the PCP relied on (only paying statutory shared parental leave pay to those taking shared parental leave) did not cause any disadvantage to women in comparison with men. In any case, birth mothers had to be excluded from the pool for comparison.

The Court of Appeal also accepted that, even if there was prima facie indirect discrimination against men taking shared parental leave, it would be justified by the aim of affording special treatment of mothers in connection with pregnancy or childbirth.

The Court held that “Mr Hextall’s complaint is in reality an attack on the whole statutory scheme, in turn derived from EU law, under which special treatment is given to birth mothers.” In rejecting it, they accepted Dijen’s and Jonathan’s formulation of the 6 different purposes of statutory maternity leave: (1) to prepare for and cope with the later stages of pregnancy, (2) to recuperate from the pregnancy, (3) to recuperate from the effects of childbirth, (4) to develop the special relationship between the mother and the newborn child, (5) to breastfeed the newborn child (recommended for a period of six months by the World Health Organisation), and (6) to care for the newborn child. (1) – (5) are unique to women.

PC Hextall is understood to be seeking permission to appeal to the Supreme Court.

The hearing was livestreamed: please click here to access the video. Please click here for a copy of the judgment.

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